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separation and sufficient to enable her to pledge his credit for necessaries, and yet inasmuch as he offered to support her, he could not, under the statute, be convicted of refusing or neglecting to support her. He said: "But the magistrates appear to havė supposed that because the wife might have reasonable ground for not going home to her husband, he was guilty of refusing to mainthin her. Can he be said to have willfully refused or neglected to maintain? I think not, and I am of opinion that no past cruelty could justify the magistrates in coming to such a conclusion." Wightman, J., said: "This is clearly an attempt to enforce a separate maintenance in a case where the husband does not refuse to maintain his wife, but is always ready to receive her. The magistrates consider that the wife, on account of the apprehended illusage, is not bound to go and live with the husband, but that is very different from a refusal by him to maintain her."

If a wife has legal grounds for divorce, that remedy affords ample opportunities to secure provision for support, and should be pursued. This summary statute was designed to enforce actual physical support only, not to interfere with marital relations, and when such support is tendered there is much force in the position that the husband can not be convicted in this quasi-criminal proceeding for refusing or neglecting to furnish it. There may be, doubtless, circumstances when the wife would be justified in refusing to go with the husband, and yet they would not be sufficient to entitle her to a divorce. The instances cited by the learned judge in his charge, supposing the husband offered to support his wife in a den of thieves or at a house of ill-fame, all would agree that not only would the wife be justified, but it would be her duty to refuse to go to such a place, and such offers of support might not be a defence under the statute. If so, it would be upon the ground, I apprehend, that this would not constitute an offer of support at all within any recognized legal or moral rule.

Such offers would be regarded as a fraudulent attempt to evade the requirement of the statute. They are very different from the offers of support made in this case, and to leave to a jury in such a case to determine whether it was reasonable to refuse to accept the support tendered, would greatly enlarge the provision of the statute, from what was intended, and would be as unwise and dangerous as it is unprecedented. Suppose the husband had committed adultery, and the wife was entitled to an absolute divorce. She would have the right to remain away, and institute legal proceedings for a divorce, in which she might obtain both temporary and permanent support, but if the husband offered to support her, would he be liable under the statute? I think not.

It would follow that a reasonable excuse may exist for not going home with the husband on request, and yet he be not amenable to this

statute. The law in such a case has provided a more appropriate remedy, but it is unnecessary to pass upon the question definitely.

In this case, under the most favorable test, no breach was established. The judgment must be reversed and a new trial granted, costs to abide the event.

All concur, except MILLER and EARL, JJ., absent.

Judgment reversed.

ABANDONMENT OF WIFE.

PEOPLE V. NAEHR.

[1 N. Y. Crim. Rep. 513.]

In the Supreme Court of New York, September, 1883.

1. The Statute as to Abandoning a Wife does not apply where a wife capriciously and without cause, refuses to accept reasonsble provision for her support, at the place the husband may have selected, even though she is liable to become a public burden.

2. Though the wife is Entitled to Reasonable Support by the husband, he has the right to determine the place and style of living, and it is only when he neglects or refuses to properly provide for, or maltreats her, or is guilty of infidelity to her that she is justified in refusing her submission to his reasonable requirements in regard thereto.

Writ of certiorari to Charles Naehr, Esq., a police justice of the city of Brooklyn, to review the proceedings upon the conviction of one Edward N. Douglass, as a disorderly person, under Laws 1870,1 and Laws 1882, in that he had abandoned his wife, and neglected to support her according to his means.

The facts appear in the opinion.

Charles J. Patterson, for appellant. I. In order to convict the relator it was necessary to prove both that he had abandoned his wife and that he had neglected to support her according to his means. The language of the act is a follows: "Sec. 1. All persons who abandon or threaten to run away and leave their wives and children, or either of them, without adequate support, a burden on the public, or who shall leave them in danger of becoming a burden on the public, or who shall neglect to provide for them according to their means, shall,” etc.

The words in italics were added by the amendment of 1882. Under this statute an abandonment, actual or threatened, is an essential element of the offense in either case mentioned. The title of the act shows that abandonment is an essential element of the offense, for it is "an act in relation to persons who abandon or threaten to abandon their

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families," etc. The only purpose of the amendment of 1882 was to obviate the decisions of this court, in which it was held that it was necessary that the wife should actually become a burden on the public before the offense was complete.1

II. Under this statute, it is essential to a conviction that the act of abandoning or leaving the family shall take place within the county of Kings. It is not enough that the abandonment take place in another locality, and the parties afterward come and reside in the county.2

III. This court has uniformly held that these proceedings can not be maintained where the wife is unwilling to return to her husband and live with him.3

IV. The proceeding before the magistrate was simply an effort on her part to gain the benefits of a limited divorce and alimony without the customary proceeding to that end.

A. Sims, Jr., for respondent.

PRATT, J. The relator has been adjudged a disorderly person, in that he abandoned, neglected and refused to support his wife, within the meaning of chapter 395,4 and as amended by chapter 171.5 This statute relates to the county of Kings. Its material provisions are as follows: "All persons who abandon or threaten to run away and leave their wives and children, or either of them, without adequate support, a burden on the public, or who shall leave them in danger of becoming a burden on the public, or who shall neglect to provide for them according to their means, against whom a warrant shall be issued upon a complaint made upon oath to any justice of the peace or police justice in the county of Kings, shall be brought before the justice of the peace or police justice who issued said warrant, and if it shall appear by the confession of the offender or by competent testimony that the person so charged is guilty, the justice of the peace or police justice before whom the said offender is brought shall make an order in which he shall specify the sum of money to be paid weekly by said person for the support of the wife or children, or either."

It seems that while the relator and his wife were living together in New York city a quarrel arose, and that she left him, and came to reside with their daughter, in Brooklyn, where she has ever since lived. He remained in New York for a time, and then went to New Jersey. He contributed for her support to some extent from time to time, and finally came to Brooklyn, where he now resides. She at last complained to the commissioners of charities, one of whom presented this charge against the relator.

1 Bayne v. People, 14 Hun, 181; People ex rel. Kehlbeck v. Walsh, 11 Id. 292.

2 Bayne v. People, 14 Hun, 181.

People ex rel. Kehlbeck v. Walsh, 11 Hun, 292; People v. Bayne, 14 Id. 181.

4 Laws of 1870.

6 Laws of 1882.

The judgment recites that the conviction was in part upon his own confession as well as upon the evidence, but the proceedings upon the trial are all returned under the certiorari, and the question arises whether or not this charge was fairly established by the proofs.

It is obvious that the wife had the opinion that the relator had been unfaithful to her, and that she had determined to live with him no more. Before leaving New York he offered to provide a separate house for her in the city, but this she refused. The extent of the relator's means was not very clearly shown, but he had offered to do something by way of contributing to her support after he came to live in Brooklyn. The determination of the questions of fact raised by the relator involves a careful consideration of the object of the statute, and the nature and degree of proof required in the proceedings under it. The statute was designed to protect the public against the burden of supporting wives and children when their husband, without just cause, neglected or refused to perform their legal obligations in that regard. It was not intended to give the wife any new remedy, either directly or indirectly. Interpreted literally, it might seem to warrant a conviction when the husband, possessed of proper means, for any cause refused to support his wife. We do not think, however, such could have been the legislative intent. It authorizes a criminal proceeding, and declares that to be a crime which was not theretofore punishable as an offense. It must therefore be strictly construed with reference to the object in view and the general policy of the law existing at the time it was passed. We do not think it imposed any new duty upon a husband toward his wife. It simply declares that unreasonable neglect, or refusal to perform certain existing obligations, in cases when such conduct will result in imposing a burden upon the public, shall be punishable as a crime. Any other view would result in a most serious disturbance of the reciprocal rights and duties which are founded upon the marital relation.

The wife is entitled to reasonable support by the husband. It is her duty as well as right to live with him in such proper place as he provides. He is entitled to determine not only the place, but their style of living, and it is her plain duty to follow him wherever his interest, necessity, or reasonable wish, may lead. It is only when he neglects or refuses to properly provide, or maltreats her, or is guilty of infidelity to her, that she is justified in refusing her submission to his reasonable requirement in this respect.

Then, as general fundamental rules, they are of such importance to the public weal that courts will most jealously guard and enforce them and every new piece of legislation affecting them has always received

1 Bayne v People, 14 Hun, 181.

2.

strict construction, even as between the parties directly interested. It is our duty to construe this act in aid rather than in hostility to these rules. In this view, it is difficult to find in this act anything more than authority for a criminal proceeding against the husband who so unreasonably neglects or refuses to perform existing legal obligations towards his wife that she has become or is likely to become a public burden. Neither was this statute intended to apply to a case where a wife capriciously and without cause refuses to accept reasonable provision for her support at the place which the husband may have selected, even though she is liable to become a public burden.

The questions here must be tested, not alone by the measure of the relator's pecuniary ability, but by the conduct of the wife and his disposition to recognize his pecuniary obligations to her. Is her want of support due to his refusal to provide for her, or to her unwillingness to perform the duties of a wife and live with him? She testified that she was unwilling to live with him. This refusal was not justified by any legal proof in the case of infidelity or cruelty upon his part. If there is any foundation for the suggestion that relator has committed adultery, the wife has an ample remedy in a suit for divorce and alimony.

When we look into the case for proof of a refusal to provide, we find nothing but an original demand for a separate maintenance on the part of the wife. This part of the case is bare of that certainty of demonstration that overcomes all reasonable doubt - which distinguishes the criminal from a civil proceeding.

A careful reading of the case can not fail to impress upon the mind the belief that the conviction was obtained through an erroneous view of the object and scope of the statute. According to our view of the statute, there is an utter failure to make out a case to' warrant a conviction of the offense charged.

The judgment should be reversed.

BARNARD, P. J., and DYKMAN, J., concur.

CONCEALING PREGNANCY, AND BIRTH OF CHILD.

STATE v. CONOVER.

[4 Crim. L. Mag. 233.]

In the Mercer County (N. J.) Court of Quarter Sessions, November,

1882.

A Child which would Have Been a bastard, was found about six weeks after its birth lying dead at the bottom of a privy belonging to a dwelling-house where its mother, the prisoner, had been a servant. She proved that several months previously she had informed her mother and her paramour of her pregnancy. She also testified that while

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